In order to prove a tort case, you must prove fault on the part of the defendant—you must show that they screwed up (blew a stoplight, crossed the center line, etc.) 

In order to prove a case for workers’ compensation, the worker must show the following:  (a) employment; (b) injury; (c) the injury arose out of the employment; (d) the injury occurred in the course of the employment. 

In short, while tort lawsuits in regular court are focused on who is to blame for an injury, workers’ compensation is focused on how connected with work the injury is.  If it is connected enough then the injury receives compensation.  If it is not, it does not receive compensation.  It does not matter if the employer was negligent—in the vast majority of workers’ comp cases, there is no showing that the employer was negligent. 

This blog will focus on the first of two of these elements. 

You must be an employee before you can make a claim of workers’ compensation.   

Let’s say, for example, that you were a 16 year-old kid who mowed lawns for neighbors for money, and one day, your foot slipped under the mower and sliced off one of your toes, and you received emergency care for this.  Could you sue the lawn-owner for work injury?  The answer is likely no—when you agreed to accept cash for mowing that lawn, you became a contractor of that neighbor, not an employee.  A plumber slipping on your stairs cannot sue you for workers’ compensation, nor can a roofer who falls off your roof.  These are independent contractors.  If they are self-employed, they likely have no recourse in workers’ compensation.  If the plumber works for a plumbing company, then their slip and fall on the stairs of your house likely gives them a claim for workers’ compensation against their employer, but not against you, the homeowner.  

What does it mean to be an employee?  There is a multi-part test of the relationship that decides whether or not you are an employee at the time of your injury, and concerns things like: (a) regular hours of being on duty; (b) payment of wages per hour; (c) the power to direct your work. 

The more you are able to decide when to work, and how to accomplish assigned tasks, the more likely you will be ruled a contractor and not an employee.  The more another person is able to tell you when to be on duty, and how to perform the assigned tasks (and especially if they supply the necessary tools), the more likely you will be ruled an employee. 

In most cases, whether or not you are an employee of someone else is a straightforward question, and not a controversy.  But the American workplace is very flexible, and a multitude of situations arise and complications can be presented.  The test that decides this is complicated.   

Ellis Law Offices is well-versed in how to navigate the employment test to maximize your ability to show employment if that is an issue in a claim of injury in your life. 

Stay tuned for more situations where employment status is the controversy 

This information does not develop an attorney-client relationship and is not legal advice.  You should consult with an attorney for advice on any estate planning.   

Author: Peter M. Sand

Ashley Allen